|The Road to and from - Juvenile Life without Parole|
|By Robert Winters, JD, Professor, School of Criminal Justice, Kaplan University|
The United States holds many unique or leading positions in the realm of criminal justice—not all of them desirable. Among them, the U.S. is the only country that “routinely,” in the words of the online magazine The Intercept, sentences juveniles to life without parole. That practice is rapidly disappearing, and here we will look at the background of the practice and recent trends at the state and federal levels.
Life without parole as a sentencing option is a concept that emerged in the United Kingdom during the 1950s, according to Human Rights Watch, and as a result it is almost entirely restricted to the justice systems of former British colonies. The U.S., however, uses the sentence far more than any other country and—of particular significance to this discussion—is the only one that employs it for juveniles, standing in the unfortunate company of Somalia as one of only two countries to decline to ratify the 1989 U.N. Convention on the Rights of the Child that includes a ban on the practice.
Most corrections professionals are familiar with the trends in criminal justice through the 1980s and 1990s, as rising crime rates and the spread of illegal drugs led to a growing public outcry for solutions. Politicians eager to answer that outcry and be seen as “tough on crime” passed various mandatory sentencing laws and updated statutes to address a wide range of specific issues such as “three strikes laws” and drug offenses involving a firearm or proximity to a school. The movement toward life without parole sentences for juveniles was part of that larger dynamic.
At the federal level, most of the activity over the past decade-plus has occurred in the courts. The first significant case was Roper v. Simmons, 543 U.S. 551 (2005). Roper banned the death penalty for juveniles, holding that it violated the Eighth Amendment as a disproportionate punishment. The opinion cited the “comparative immaturity and irresponsibility of juveniles” as well as the fact that they are “more vulnerable or susceptible to negative influences and outside pressures” and have “less control, or less experience with control, over their own environment” and a “character…[that] is not as well formed as that of an adult.”
The next step was Graham v. Florida, 130 S. Ct. 2011 (2010), which restricted the use of life without parole for a juvenile to homicide cases. Justice Kennedy reiterated the notion that “The concept of proportionality is central to the Eight Amendment.” The opinion also pointed out that life without parole is “an especially harsh punishment for a juvenile” since “A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only.” Moreover, the Court noted that a normal life sentence (that is, with the opportunity for parole) did not guarantee the release of the offender but only the possibility, so justice could still be served in the most heinous cases.
Miller v. Alabama and Jackson v. Hobbs, 132 S. Ct. 2455 (2012) were decided jointly by the Supreme Court. It was this ruling that finally held that a life without parole sentence for a juvenile offender is a violation of the Eight Amendment.
The last step was Montgomery v. Louisiana, 577 U.S. ___ (2016), which established the retroactivity of Miller. State supreme courts had held inconsistently in this matter, with 14 holding it retroactive but 7 holding that it was not. (Six other states had legislatively modified their juvenile sentencing statutes.)
As of this writing, 30 states still allow juvenile life without parole sentences (by statute), but four—Pennsylvania, Michigan, Louisiana, and California—account for about half the 2,500 offenders who were so sentenced. California passed SB 9 in 2013 and subsequently began resentencing its juvenile life-sentenced inmates.
There are many reasons for eliminating the practice of juvenile life without parole. Experts from the mental health communities filed amicus briefs in the previously discussed cases have presented evidence—in many cases cited by justices in writing opinions—that adolescents are impetuous, less able to appreciate risks and consequences, less able to participate constructively in their own legal defense, and more likely to respond poorly to interrogation. (Writing in Roper, Justice Kennedy referred to these facts as things that “any parent knows.”)
We acknowledge these facts elsewhere in our legal system. We place age limits on activities ranging from driving and voting to drinking alcohol and military service, and those limits are based on the realization that young people do not possess an adult level of judgment.
Even from a financial standpoint, banning life without parole for a juvenile has benefits. The national average cost to house a typical offender is $34,135, and according to the ACLU that amount approximately doubles after age 50. Incarcerating a 16-year-old for 50 years will thus cost about $2.25 million (which does not account for inflation or inmates who live past age 66). Moreover, the average daily cost of incarceration for a juvenile is over three times greater than that of typical alternative-to-incarceration programs ($241 vs. $75).
It is worth reemphasizing that eliminating life without parole for juveniles does not mean even those who committed horrendous offenses will simply walk free. Globally, the average time served before a mandatory parole review is 10 to 15 years. Many states have similarly incorporated minimum sentence length prior to review into their revised statues on juvenile sentencing. In West Virginia it is 15 years; in Nevada, 20 years; in California, 15 to 25 years.
In closing, we should also acknowledge that the racial disparities found elsewhere in the criminal justice system are also present in juvenile justice. African American youth are incarcerated in juvenile programs at five times the rate of white youth. African Americans accused of homicide of a white victim represent 23.2% of juvenile homicide arrests but 42.4% of juvenile life without parole sentences.
With the groundswell in changing sentiment toward juvenile sentencing at both the state and federal levels, now is the time to reexamine the best ways to sentence, incarcerate, and rehabilitate juvenile offenders for the whole range of offenses.
Corrections.com author, Robert Winters, holds a Juris Doctorate degree and is a Professor with Kaplan University. He is also a member of the National Criminal Justice Association and serves as a Western Regional Representative, a member of the National Advisory Board and their National Elections Committee.
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